1. This is an application to set aside an order passed under S. 144 of the Code of Criminal Procedure by the Sub-Divisional Magistrate of Benguserai against which a motion was presented before the District Magistrate at Monghyr and was rejected.

2. Among the grounds taken in revision are these that the Magistrate has not found and had not before him evidence to find that there was imminent danger making immediate prevention or speedy remedy necessary and, therefore he should not have proceeded under S. 144; secondly, that the Magistrate in a proceeding under S. 144 of the Code of Criminal Procedure should not have entered into the question of possession of immovable property—a matter for which proceedings under S. 145 should more appropriately have been taken, and, thirdly, that the Magistrate's findings are based on no evidence and an order should not have been passed to the prejudice of the petitioners without evidence to support it. The facts are somewhat unusual in this respect that neither the first party nor the second party claims to be entitled in their own right to possession of any property at all. There is an estate known as Neola or Neolagarh which was the property of Chaudhury Biswanath Singh and is now admittedly the property of his minor posthumous son Chandramauli Prasad. This son was until March 3, 1935, under the guardianship of his mother Krishnakanta Kumari who died on that date. Thereafter, the first party consisting of Jagrupa Kumari widow of the great grandfather of Chandramauli and her adherents on the one hand and the second party Chotey Narain Singh, father of Krishnakant Kumari, that is to say, maternal grandfather of Chandramauli and his adherents on the other hand are claiming to be administering and managing the estate on behalf of the minor. The proceeding was started on a Police report dated May 13, 1935, in which the Sub-Inspector after a statement of facts recommended that both the parties might be served with notices under S. 144 of the Code of Criminal Procedure not to create troubles and breach of the peace in connection with any affair relating to Neolagarh estate. The facts on which he based this recommendation were that in village Bhawanandpur belonging to the estate crops had been grown and harvested and stacked on the khalihan and there was likely to be a dispute leading to a breach of the peace as to who should remove the crops. The Magistrate on reading the Police report on May 22, 1935, recorded his opinion that speedy remedy was desirable to prevent an imminent danger of a breach of the peace. Instead, however, of issuing notices on both parties he issued a notice under S. 144 of the Code of Criminal Procedure to the members of the first party only, directing them to abstain from going near the places mentioned in the report or from handling the grains of the minor and not to commit any breach of the peace. The members of the first party filed a written statement praying that the order under S. 144 passed against them might be rescinded and similar order passed against the opposite party. Pleaders were heard and the Magistrate on June 7, 1935, confirmed the order as against the first party. The points which he set forth in his order as the points on which the case hinged are, firstly, whether the claim of Musammat Jagrupa Kumari to be the guardian of Chandramauli was bona fide and whether she was competent to be the guardian at all, and secondly possession.

3. The first point, it is contended, was more suitable for determination in a Civil Court. Nevertheless, there were facts in connection with the litigation that has already taken place indicating that Musammat Jagrupa Kumari and persons associated with her might have interests adverse to those of the minor, the agnates of the minor being of course the persons who would succeed to the property in the event of the minor's death.

4. On the second point the Magistrate held that Chotey Narain and the amlas of the late Kriahnakanta Kumari were in fact managing the estate and were “in possession of the grains and the estate on behalf of Chandramauli”. The order was passed without taking any evidence. I am informed at the hearing that some documents were placed before the Magistrate, but no document was marked as an exhibit or placed on the record. Wherever documents are used as evidence, the Court ought to place them on the record and mark them in accordance with the High Court's General Rules and Circular Orders, so that both sides may know and a Court of appeal or revision may see on what material the decision has proceeded. The District Magistrate in refusing to interfere on revision said:

“The respondents were in possession of the kachary and have paid land revenue and cess regarding the property … their possession has been rightly maintained by the Sub-divisional Officer and the motion is rejected.”

5. In admitting the petition in revision I asked for a report from the District Magistrate whether the order passed was intended as a mere temporary order pending the taking of proper proceedings under S. 145 of the Code of Criminal Procedure or S. 107, Criminal Procedure Code, or as a final order relieving the Magistrate of the duty of making a proper enquiry into the circumstances. In the report it is stated:

“It is not proposed to pursue the matter any further beyond taking steps to prevent a breach of the peace by the wrong-doer”;

6. That the order under S. 144 of the Code of Criminal Procedure was passed to prevent an imminent danger of a breach of the peace at Neola and Bhawanandpur and that

“if there is any recurrence or any sign of disturbance in those villages after two months, steps will undoubtedly be taken under S. 107 of the Code of Criminal Procedure and instructions have been issued to the Police accordingly.”

7. The bulk of the report embodies the view of the Magistrate or what may be called the findings of the Magistrate regarding the falsity of the claim set up on behalf of the petitioners, so far as the record shows, these findings rest on no evidence at all and it is the grievance of the petitioners that what may be called an ex parte determination of the whole case against them has been made without taking any evidence.

8. It cannot be laid down as a general proposition that an order under S. 144 cannot be passed without taking evidence nor can it be said that in every case of dispute regarding land S. 144 is inappropriate and proceedings ought to be had under S. 107 or S. 145, Criminal Procedure Code. In the Full Bench decision in Sheobalak Singh v. Kamaruddin Mandal (1), Mullick, J. explained the legal position thus: “Section 144 is of general application and contains nothing which ousts the Magistrate's jurisdiction in cases of bona fide disputes as to possession of land. But where S. 107, or S. 145 will meet the requirements of the case S. 144 is not an appropriate remedy and if it is found that the danger was not so imminent that it could not be otherwise averted, an order under S. 144 will generally be held to have been made without jurisdiction. Where it is clear upon the materials before the Magistrate that one party is in possession and that another whose claim to possession is a mere pretence is threatening to interfere with that possession, the Magistrate is clearly entitled to resort to the special summary procedure of S. 144 if immediate prevention or speedy remedy is desirable… What the Court deprecates is the habitual and unjusti. Cable use of S. 144 as a substitute for ss. 107 and 145.” Mullick, J., said further: “Now, if it had been shown that upon the information before the Magistrate the conditions required by S. 144 had not been established so that the use of S. 144 instead of S. 107 or S. 145 was a mere abuse of process of the Court or that though made with jurisdiction, the order had resulted in something akin to the denial of the right of fair trial. We should certainly have interfered in exercise of our powers of superintendence.” The above and other decisions recognize the jurisdiction of a Magistrate to pass an order under S. 144 in a case where one party not in good faith is merely set ting up a pretence of claim and not a bona fide dispute, but it cannot be considered to be a good practice habitually to prejudge without evidence both the merits of the dispute and the question whether it is bona fide. Magistrates are entrusted with wide powers to enable them to discharge their important duty of providing for the prevention of a breach of the peace but such powers are not intended to be habitually used for the settling of disputed points which call for a decision on evidence. It is to be noted that the dispute now before me relating to crops grown in Bhawanandpur is not the first dispute between the parties that has been taken before the Magistrate. There was another in April referring to Beolagarh, the headquarters of the estate. In that case also the Magistrate passed an order under S. 144, Criminal Procedure Code, on April 11, 1935, against the present petitioners. The Magistrate is apparently prepared to pass similar orders in village after village without ever coming to grips with the evidence on the question which way the order should go, for he says in his explanation that should trouble recur in the same village after two months, steps would be taken under S. 107, Criminal Procedure Code. He apparently still does not consider that it would be his duty to take such action in the event of trouble occurring in any different village.

9. Now I return to the grounds on which the order of the Magistrate is attacked. The first ground fails; the Magistrate's order of May 22 records his opinion that speedy remedy was desirable to prevent an imminent danger of a breach of the peace and he was entitled to record such an opinion on a perusal of the Police report.

10. On the second ground the substance of the Magistrate's explanation is that S. 145 proceedings would have been inappropriate because the possession of Chandramauli Prasad is undisputed. The extracts I have cited from the orders of the S.D.O and District Magistrate, however, are clear, the proceedings were treated as a case of disputed possession and the findings are findings of possession. Therefore, in the words of Mullick, J. “S. 144 is not the appropriate remedy.”

11. On the third ground, the petitioners can fairly complain that (again in the words of Mullick, J.) the orders against them “bad resulted in something akin to the denial of the right of fair trial.” I have pointed out that in the original Police report the recommendation was to proceed under S. 144 issuing notices on both parties. No reason has been given by the Magistrate why he issued the notice against one party only. Had the order now complained against been the first order of the kind, it might have been sufficient to point out to the Magistrate that there was another procedure for dealing with such a matter which ordinarily speaking he should have preferred to follow. As, however, the Magistrate has applied S. 144 repeatedly and seems disposed to do so habitually, I think the proper course in this case is to leave no doubt that this Court will not tolerate what Mullick, J. has called “the habitual and unjustifiable use of S. 144, as a substitute for ss. 107 and 145.” Therefore although the order has been passed more than two months before today's date, I shall follow the course which was followed in Joint Agents, I.G.N & B.S.N Co. Ltd. v. Chandra Ketu Narain Singh (2), and Saligram Singh v. Baijnath Singh (3), and set aside the order.

12. Order set aside.